a) if either the U.S. or the home country's government provided financial support for the person's J-1 program;

b) if the person's field of endeavor appears on the "skills list" (list of fields in which experts are critically needed) for his/her country; or

c) if the J-1 was obtained for the purpose of graduate medical training, typically a residency or fellowship.

How to be Certain Whether One is Subject to the HRR

An applicant may know that one of the three situations listed above applies to his or her circumstance. However, there are many who are not sure. It is a good idea to check with the program sponsor to clarify whether there was any government funding involved and to consult the skills list issued by the U.S. Department of State (DOS), which is a publicly available document. Usually the information on the Certificate of Eligibility, Form IAP-66, is the most reliable indication of the applicability of 212(e). There is a special place on the IAP-66 to indicate whether a person is subject to the HRR but often that section of the form is blank or illegible. The J-1 visa stamp itself should also have a notation that the "Bearer is subject to 212(e)" or "Bearer is not subject to 212(e)." However, these visa notations are often incorrect – sometimes the consulate issues a visa indicating a person is subject to the HRR when, in fact, there is no legal basis for such a determination.

If it appears that, based upon the three above-listed criteria, a person should not be subject to the requirement but the visa indicates that the "bearer is subject to 212(e)," it may be possible to obtain confirmation from the DOS. There is a procedure to submit a detailed letter to DOS requesting an official opinion based upon the particular person's file. If the opinion states that the HRR does not apply, then the person would show a copy of that letter in lieu of a waiver approval whenever needed, when applying for an H1B or adjustment of status to permanent residence, for example.

Going Abroad to Comply with the HRR

If it is clear that one is subject to the HRR, the first option, of course, is to comply with the requirement by spending two years in the country of last residence. Note that it is not just a matter of being outside the U.S. to meet this requirement. Rather, in order to satisfy the HRR, one must be in the country of last residence. We have been asked, for example, whether a person who came as a J-1 from India and later obtained Canadian permanent resident status could comply with the HRR by going to Canada. The answer is, "No."

Obtaining a Waiver

An alternative to the HRR may be to obtain a waiver. There are several types of waivers and some are easier than others. The simplest type of waiver is based upon a statement of "No Objection" from the home country government. The applicant would generally initiate the waiver process by contacting his/her country's consulate in the U.S. After obtaining the required letter/s, there are DOS forms to complete for the waiver. Applicants typically handle this type of waiver without an attorney, though, of course, they can choose to hire an attorney if they prefer.

Sometimes, however, the home country's government does object. Furthermore, the "No Objection" waiver is not available to those in graduate medical education / training programs. Thus, many people must look to other options. In our next article in this J-1 overview we will cover waivers based upon an "Interested Government Agency," both in general as well as those programs specifically designed for medical doctors. We also address waivers that are based on hardship or a fear of persecution.

[See also, J-1 Exchange Visitor Overview :  (Part 1)]

© The Law Office of Sheela Murthy, P.C.